WASINAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1335/2018

[2021] HKCFI 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1335 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicants are mother and son, who is now aged about 18 years old.  I shall refer to the first applicant as the applicant and the second applicant as applicant son, unless otherwise stated below.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 15 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  The applicant son’s case relies upon the facts of the applicant.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicants

4.  The applicant is a domestic helper. Her employment contract was terminated prematurely.  Since 13 August 2002, she stayed in Hong Kong without authority.  She was arrested by police 27 June 2004. She was referred to the Immigration Department and was released on bail.  She failed to report to the Immigration Department. On 5 October 2013, she was arrested by police again and was referred to the Immigration Department.  On 10  July 2015, she raised her non-refoulement claim with the Immigration Department.  Her applicant son was born in 2003.

5.  The applicant claimed that if refouled, she and the applicant son would be in danger because her husband in Indonesia knew about her affairs in Hong Kong and had threatened to kill her and her son if they returned to Indonesia.  Her marriage with her husband in Indonesia was not a happy one because her husband was a womanizer and a drunkard.  He would abuse her whenever he was drunk.  She only suffered minor injuries of bruises or redness for being slapped.  He was also an irresponsible person.  They had a daughter who lives with her husband in Indonesia. She had to work as a domestic helper in 2001.  In Hong Kong she met a Pakistani and they fell in love. In 2003, she gave birth to her son. Details of the story are set out in paragraphs 7-21 of the Board’s Decision.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  The Director had considered their situations separately.

8.  By Notice of Decision dated 27 December 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that there were no substantial grounds for believing that there would be any real and substantial risk of her and her son being killed by her husband or her son would be discriminated if they return to Indonesia [11]; that state protection was available to her [18]; internal relocation was an option open to her [23].  The applicant son’s case was assessed separately.  The Director found that the son’s citizenship would be recognized by the Indonesian government and that there was nothing to suggest that his rights, such as that of education and civil relations with her would be deprived of for any reasons. [36]

The Board’s Decision

9.  The applicants appealed to the Board against the Director’s Decision. They attended a hearing before the Board on 12 April 2018. The Board had considered the applicant’s case and the applicant son’s case separately.  

10.  For the reasons set out in the Board’s Decision, the Board, rejected her and her son’s appeal. I shall set out a summary of the reasons below.

(1)  The Board had considered the applicant’s evidence and accepted that she had been abused by her husband. [31]

(2)  The Board considered that there were no substantial grounds for believing that there was a real risk of her being harmed by her husband in the foreseeable future if she returned to Indonesia because she had not had any contact with him since 2013 and under the Indonesian law, she could divorce him.  Even if she lived in the vicinity where her husband lived, she would be protected by the state.  There are the government run integrated service centres for women and children.  She could also seek assistance from the authorities and non-government agencies for protection from domestic violence.  She had shown her ability to live independently with her son as she has been doing in Hong Kong.  The government provides welfare safety providing a range of assistance for her for employment in Indonesia, which would support her internal relocation. See paragraphs 30-38 & 41.

(3)  As to the applicant son, the Board had taken on board the applicant’s claim that she would face difficulties because her son was born outside of marriage and is of mixed Pakistani and Indonesian ethnicity.  The country of origin information (“COI”) also shows that she may face societal discrimination. But there is no evidence to show that she would be harmed.  She could also have assistance from social organizations.  The applicant son would be able to establish his Indonesian citizenship and as such, would be able to access government-sponsored insurance benefits and school enrolment. [37]

(4)  Her son speaks Indonesian.  There is no available information to indicate that her son would be refused education in Indonesia because of his mixed ethnicity, his being born outside of a married relationship, his being raised by his mother as a sole parent or for financial or other reasons. [38]

(5)  The COI also shows that there is no evidence that her son would face discrimination because of his mixed Pakistani-Indonesian background. [39]

(6)  For the reasons above, the Board rejected his claim of all the risks in paragraph 6 above.

11.  The Board therefore dismissed their respective appeals and affirmed the Director’s Decision. See paragraphs 55-58.

Application for leave to apply for judicial review

12.  The applicants filed Form 86 on 9 July 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In the applicant’s affirmation in support of their joint application, she said:

“I would like to reject and review the decision made by the Torture Claims Appeal Board on me and my son’s case. They disregard our dangerous situation.”

DISCUSSION

14.  The Court of Appeal in in Re Khan Kamal Ahmed [2019] HKCA 377,held:

“14(1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

15.  The Board has clearly considered the situations of the applicant and her son separately as shown in paragraph 10 above.

16.  I note that the applicant son is is a minor and he did not have legal representation before the Board.  The Court of Appeal in Re Jasvir Singh & Ors [2021]HKCA 53, 14 January 2021 held that if the Board had not considered the applicant son’s case separately, the matter should be remitted to the Board for re-consideration.  However, if the Board had properly dealt with the applicant son’s case, the court may dispose of the application, treating the absence of legal representation before the Board as a mere irregularity.

17.  The applicant and the applicant son were legally represented by lawyer under the Duty Lawyer Scheme when their applications were processed by the immigration officer. At that stage, the legal representative should have taken into account of the applicant son’s special circumstances, if any, in Indonesia and should have put forth to the immigration officer for his consideration.  That explains why the Director had, in the Director’s Decision, considered their cases separately.

18.  I have also taken on board the following factors.

(1)  The applicant and the applicant son were legally represented by lawyer under the Duty Lawyer Scheme when their applications were processed by the immigration officer.  At that stage, the legal representative should have taken into account of the applicant son’s special circumstances, if any, in Indonesia and should have put forth to the immigration officer for his consideration.

(2)  The grounds of opposition are inconsistent with the Board’s Decision as set out in paragraph 10 above.  They should be rejected.

(3)  In Peter Po Fun Chan (2007) 10 HKCFAR 676 §14, the Court of Final Appeal held that leave should not be granted for application for judicial review if there is no realistic prospect of success.

19.  The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

20.  Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence